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August 2017

08/29/2017

Pregnancy Discrimination Claims for Female Police Officers

By John V. Berry, Esq., www.berrylegal.com    

Police departments, more than ever, are facing the issue of how to properly handle cases where female police officers become pregnant and need adjustments to their work schedule and/or duties.  The 2017 Alicea case below is only the latest version of a department or municipality that seems to have gotten it wrong.  Departments need to definitely re-evaluate their own policies and consider whether or not their policies meet their legal obligations.  Otherwise, these types of issues can have significant and costly ramifications to a police department and morale implications for sworn officers.  

Background

The Alicea case involved a female police officer, Sarah Alicea, who filed an EEOC charge against the Town of Cromwell, Connecticut for pregnancy discrimination.  The complaint was filed with the Equal Employment Opportunity Commission by the American Civil Liberties Union.  Prior to these issues developing, the veteran officer had worked for 4 years as a patrol officer for the Town of Cromwell.  When the officer notified the Cromwell police chief and manager of her pregnancy and the physical restrictions placed on her by her physician, the town refused to provide her with light duty and instead forced the officer to go out on leave without pay. It is alleged that her supervisor, when confronted with the issue, told her that they did not have light duty and she was required to go on family medical leave.  

Having run out of FMLA leave, she was not getting paid and required to pay for her employer's portion for her health benefits, lost contribution to her pension and not accumulating leave.  To compound matters, the department apparently had no written policies concerning accommodations for disabilities under the Americans with Disabilities Act (ADA) or for accommodations for pregnant officers under the PDA.  

Subsequently, the officer sought counsel and filed a discrimination charge against the Town and Department. 

Pregnancy Discrimination Statutes

Federal pregnancy discrimination statutes require that police employers and other governmental agencies treat pregnant police officers the same as other officers who have a similar inability to work. The Pregnancy Discrimination Act of 1978, amended the Civil Rights Act, and provides as follows:

"That section 701 of the Civil Rights Act of 1964 is amended by adding at the end thereof the following new subsection:

"(k) The terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.".

Sec. 2. (a) Except as provided in subsection (b), the amendment made by this Act shall be effective on the date of enactment.

(b) The provisions of the amendment made by the first section of this Act shall not apply to any fringe benefit program or fund, or insurance program which is in effect on the date of enactment of this Act until 180 days after enactment of this Act.

Sec. 3. Until the expiration of a period of one year from the date of enactment of this Act or, if there is an applicable collective- bargaining agreement in effect on the date of enactment of this Act, until the termination of that agreement, no person who, on the date of enactment of this Act is providing either by direct payment or by making contributions to a fringe benefit fund or insurance program, benefits in violation with this Act shall, in order to come into compliance with this Act, reduce the benefits or the compensation provided any employee on the date of enactment of this Act, either directly or by failing to provide sufficient contributions to a fringe benefit fund or insurance program: Provided, That where the costs of such benefits on the date of enactment of this Act are apportioned between employers and employees, the payments or contributions required to comply with this Act may be made by employers and employees in the same proportion: And provided further, That nothing in this section shall prevent the readjustment of benefits or compensation for reasons unrelated to compliance with this Act." 

The PDA applies to public sector employers, like in the Alicea case.  The complaint filed in this case can be found here. Alicea EEOC Charge  

These types of cases are becoming more frequent.  Late last year 2 Kentucky female police officers, who had become pregnant and treated similarly to Alicea brought forward similar cases are were resolved through monetary settlements and agreed to changes in police department policies.  Kentucky Officer's Prevail.  In fact, just a few weeks ago a female police officer in New Jersey, who had her hours cut because of her pregnancy was successful in obtaining a settlement in her case. This issue is likely to be the subject of a number of lawsuits and EEOC claims as departments go through the process of recognizing their legal obligations under the PDA.  Some helpful information was provided regarding these issues by the Women in Federal Law Enforcement, in a memorandum.  Police departments need to get ahead of this issue to the extent that they do not have appropriate policies for dealing with pregnant officers.  

Conclusion

It is important for a law enforcement officer to understand the legal issues they face if issues arise during their pregnancy and department policy.  Our law firm advises and represents law enforcement officers in disciplinary and civil matters. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. The Firm's Facebook page can be found here and our Facebook page can be found here.

Posted at 09:38 AM in Physical Fitness Standards, Pregnancy Discrimination |

Tags: department policies, enforcement officer, law, legal rights of pregnant police officers, light duty, police lawyer, police officer, pregnancy discrimination, pregnancy discrimination act, pregnancy discrimination act of 1978, pregnancy rights

08/24/2017

The First Amendment Rights of Police Officers

By John V. Berry, Esq., www.berrylegal.com

In the wake of numerous recent First Amendment retaliation lawsuits by law enforcement officers, in conjunction with the increasingly common use of social media, I thought it would make sense to put together a synopsis of where we are as of 2017 with regards to the right of police officers and First Amendment speech. As police officers are aware, they are always held to a higher standard than all other types of employees. Making statements through social media is no different.  With the technology and social media of today, new areas of case law for law enforcement officers are being developed and new court scrutiny is being applied. Social media usage is just the latest First Amendment arena for law enforcement officers.

The First Amendment Applies to Law Enforcement Officers

The First Amendment is rather short, and provides the following rights:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The First Amendment protects individuals from government suppression of free speech, but not from other private individuals and/or companies who take action as a result of speech. For police officers, they are employed by government agencies, whether they are local, state or federal employers. As a result, they have been found to have First Amendment rights in their speech, depending on the facts and circumstances in each case. This most often comes up with a law enforcement officer makes a statement or posting on social media which offends a supervisor, police chief or sheriff.  

First Amendment History for Police Officers

The issue of the application of the First Amendment to police officer work really first began to arise in 1892, when Justice Holmes, in a famous quote involving the termination of a police officer for engaging in politics, stated: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517 (1892). This, however, does not tell the whole story for police officer free speech, nor does it foresee some of the cases that have come later.

The centerpiece of First Amendment protections for police officers, came in 1968, in the case of Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). In Pickering, the Court held that in order for a law enforcement officer to have protected free speech, their speech or statement must be a “matter of public concern.” A court will decide, on a case by case basis whether or not a law enforcement officer’s statement or speech are a matter of public concern. The courts have stated ”public employees do not surrender all their First Amendment rights by reason of their employment." Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). Instead, police officers retain the right in certain circumstances to speak as a citizen addressing matters of public concern. Courts therefore must decide whether an official spoke as a citizen, and thus had First Amendment rights to exercise, or whether the officer spoke in his or her capacity as a public employee, and therefore did not. The more public an issue is, the more protected it may be.

In Pickering, the Court held that a school district had violated a teacher's right to free speech when it terminated the teacher for writing a letter to a local newspaper criticizing the school board's handling of a tax proposal. The Pickering Court had noted that the statements in the letter were not "directed towards any person with whom [the teacher] would normally be in contact in the course of his daily work." Additionally, publication of the letter did not impede the teacher's performance of their regular duties in the classroom or otherwise interfere with the regular operation of the schools generally. The Pickering court held that because the school district had no greater interest in limiting the teacher's speech than it did in limiting a similar contribution by any member of the general public, the teacher spoke as a private citizen, and the speech itself could not provide a basis for the teacher's dismissal from public employment.  Pickering provided the framework for evaluating freedom of speech cases for law enforcement officers.

Balance of Speech and the Efficiency of the Workplace

After a court evaluates whether or not a police officer has expressed a matter of public concern, it must then evaluate that right versus the government’s interest in providing public services. As the Garcetti court noted, "a government entity has broader discretion to restrict speech when it acts in its employer, but the restrictions it imposes must be directed at speech that has some potential to affect its operations." Id. at 411.  The Garcetti and other courts have held that they need to balance the interests of the public employee, as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.  In balancing the interests on each side, a court "must consider not only the employees' interest in speaking but also "the importance of promoting the public's interest in receiving the well-informed views of government employees engaging in civic discussion." Garcetti, 547 U.S. at 419.

Speech Which May Be Protected

Speech, statements or social media postings by law enforcement officers may be potentially protected if the involve criticism of a department, chief of police or sheriff. Beach v. City of Oloathe, 185 F.Supp.2d 1229 (D. Kan. 2002). Other areas where police officers may have stronger cases for First Amendment protection involve discussions or criticism of a police department’s policies, budgets or strategies. Additionally, law enforcement officer speech involving the Justice system as a whole may be subject to a higher degree of protection. A list of some areas given stronger First Amendment protection include:

1. Criticism of police leadership;

2. Criticism of police policies or practices;

3. Criticism of police budgets or strategies;

4. Statements about Department morale; and

5. Discussion or statements about discrimination or whistleblowing

Each case is different, so it is important to consult with an attorney to see the level of protection offered by speech or if disciplinary action results due to such speech.

More Recent Cases

Given the development of Facebook, Twitter and other social media there have been new court cases that have developed. We have seen court cases involving officers who have been proposed for discipline as a result of their Facebook postings. Social media has redefined law enforcement officer First Amendment rights. The cases and rulings have varied somewhat by jurisdiction, with some courts more willing to permit First Amendment cases and some not.

Some new cases to consider:

Moonin v. Tice, 2017 U.S. App. Lexis 15956 (9th Cir. Aug. 22, 2017) (A broad directive by a state police department prohibiting troopers from communicating with any member of the public concerning the management of the canine drug detection unit violated a trooper's freedom of speech since the directive regulated speech outside the trooper's official duties on a matter of public concern, and no potential disruption of department operations was shown);

Drake v. Town of New Boston, 2017 U.S. Dist. LEXIS 86319 (D. NH. June 6, 2017) (In light of police officer plaintiff’s repeated allegations that she was fulfilling her duties as a police officer by reporting misconduct to her superior officers, the court could not find that those statements were not made pursuant to her professional responsibilities as a police officer. As a result, the court dismissed the First Amendment complaint by the officer because she could not show that her reports to her superior officers were made in her capacity as a private citizen);

Liverman v. City of Petersburg, 844 F.3d 400 (4th Cir. Dec. 15, 2016) (Court of Appeals held that that a police department social media policy which made public comments that could be deemed unfavorable to the police department was overbroad and thus violated the First Amendment);

Hamm v. Williams, N.D. Ohio, Case No. 1:15CV273 (Sept. 29, 2016) (a police officer who posted on Facebook his support of six fellow law enforcement officers who had been indicted on charges of shooting unarmed suspects to be protected First Amendment speech); and

Graziosi v. City of Greenville, 775 F.3d 731 (5th Cir. Jan. 9, 2015) (veteran police officer’s statement on Facebook about her police department’s decision not to send officers to attend the funeral of an officer killed in the line-of-duty in another community was not protected speech under the First Amendment because her speech did not address a matter of public concern, but instead, involved a dispute over an intra-departmental decision since her displeasure with the chief's decision was the primary reason she made her posts).

There are far too many recent cases to post here, but the point is that the number of cases based on social media comments by law enforcement officers are increasing and this area of the law is bound to be clarified further in the short-term future.  

Conclusion

It is important for a law enforcement officer to understand the legal issues they face involving protected First Amendment speech. Our law firm advises and represents law enforcement officers in disciplinary and civil matters. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.  The Firm's Facebook page can be found here and our Facebook page can be found here. 

Posted at 06:26 PM in Administrative Defense, First Amendment |

Tags: Facebook , First Amendment, First Amendment rights for police officers, free speech, legal defense, pickering, police officer first amendment rights, police officers

08/07/2017

Law Enforcement Officer Self-Defense in the Age of Recording Devices

By John V. Berry, Esq., www.berrylegal.com

Issues When Facing Recording Devices

We frequently represent law enforcement officers (LEOs) that have been accused of misconduct.  As the old adage goes, an ounce of prevention is worth a pound of cure.  In the case of law enforcement officers, it has never been more the case as it is today when it comes to public recording of police officer interactions with the public.  A traffic stop or other minor arrest can be recorded by suspects, citizens, bystanders and others and placed on the Internet for all to see. It is quite often the case where such video is taken out of context and displayed without the full recording.  We have seen this type of issue arise time and again in the past 5-7 years with more regularity.  Before 2010, these issues rarely tended to come up. However, with the improvement of smartphone and other recording technology the issue of law enforcement recording has gotten to the point where all law enforcement officers should be trained to assume that they are always being recorded in their interactions with the public and to act accordingly.

Existing Court Law

In recent years, many federal lower courts have typically held that the First Amendment protects the right to videorecord and photograph police officers. A relatively recent decision held a bit differently. In Fields v. City of Philadelphia, 166 F. Supp. 3d 528 (E.D. Pa. 2016), the U.S. District court seemed to somewhat narrowed this right.  The court in Fields held that there was no constitutional right to videorecord police when the act of recording does not accompany a “challenge or criticism” of the police conduct. The lower court in Fields was recently reversed by the U.S. Court of Appeals for the Third Circuit in Fields v. City of Philadelphia, 862 F.3d 353 (3rd Cir. 2017), which held that citizens have a general First Amendment right to film police officers. The Fields appeals court decision stated that:

"We do not say that all recording is protected or desirable. The right to record police is not absolute. '[I]t is subject to reasonable time, place, and manner restrictions.' But in public places these restrictions are restrained. We need not, however, address at length the limits of this constitutional right. Defendants offer nothing to justify their actions. Fields took a photograph across the street from where the police were breaking up a party. Geraci moved to a vantage point where she could record a protestor's arrest, but did so without getting in the officers' way. If a person's recording interferes with police activity, that activity might not be protected. For instance, recording a police conversation with a confidential informant may interfere with an investigation and put a life at stake. But here there are no countervailing concerns."

In sum, for now, it appears that the courts have almost all taken the view that citizens may actively film law enforcement officers performing their duties, unless some exception applies (i.e. substantial interference, officer safety). That said, we have included some tips in dealing with such recordings for law enforcement officers to be aware of.

Tips for LEOs in the Age of Video Recording

  1. During traffic stops or other arrests, it is important for a LEO to always assume that somebody is recording you. If a LEO consciously thinks about the potential for being recorded before each stop, they can consciously take steps to avoid being recorded in a bad light. One of these steps is to always maintain composure and act courteous and polite.  
  2. Avoid getting into debates about whether or not a citizen can record a LEO's actions.  These are usually counterproductive and make the officer look worse later.  Additionally, the recording could be deemed to be permissible freedom of speech/freedom to film issues. 
  3. Where the officer is aware that he or she is being recorded and the citizen is being difficult or abusive it is important for the officer to attempt to look very calm and announce any commands clearly and politely. The officer should do his or her best to explain to the individual what is happening and why it is happening. This can help later when the individual files an administrative complaint. 
  4. Officer safety is paramount.  Just because an individual has the right to film, officer safety issues can arise which could require the officer to take action. Multiple courts have ruled in favor of police officers taking necessary, reasonable steps to keep themselves and others safe in the lawful performance of duty.   
  5. Review and understand all department specific policies on citizen recording. Knowing the policies that control the actions of a LEO during a recording incident can be important to avoid future disciplinary action.  

Conclusion

It is important for a law enforcement officer to understand the legal and department issues that they face when it comes to public recording of police interactions. Please keep in mind that each type of situation involving citizens that record police officer interactions is different and depending on department, will vary. Our law firm advises and represents law enforcement officers in disciplinary and civil matters. We can be contacted at www.berrylegal.com  or by telephone at (703) 668-0070.  The Firm's Facebook page can be found here Berry & Berry Facebook Page. 

Posted at 04:01 PM in First Amendment |

Tags: filming police, filming police officer, first amendment, lawyer, police lawyer, recording police officer, right to record, tips for police officers, tips in interacting with public recording

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